CDCAN Disability-Senior Rights Report: Mandatory “Uniform Holiday Schedule” & “Half-Day Billing Rule” For Many Regional Center Funded Community Site-Based Programs Serving People With Developmental Disabilities No Longer In Effect – Dept of Developmental Services Releases Letter To Regional Centers Today With Official Notification of the End of Those Two Reductions Due To Federal Court Order
CDCAN DISABILITY-SENIOR RIGHTS REPORT
CALIFORNIA DISABILITY-SENIOR COMMUNITY ACTION NETWORK
MARCH 17, 2015 – TUESDAY
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State Capitol Update:
“UNIFORM HOLIDAY SCHEDULE” & “HALF-DAY BILLING RULE” NO LONGER IN EFFECT FOR MANY REGIONAL CENTER FUNDED SITE-BASED PROGRAMS – DEPT OF DEVELOPMENTAL SERVICES MAKES IT OFFICIAL WITH LETTER TO REGIONAL CENTERS RELEASED TODAY
SACRAMENTO, CA [CDCAN LAST UPDATED 03/17/2015 – 10:08 AM] – The Department of Developmental Services (DDS) issued today an official letter to the 21 non-profit regional centers informing those agencies that the 2009 “uniform holiday schedule” – essentially non-reimbursable mandatory furlough days – and the 2011 “half-day billing rule” is no longer in effect, impacting thousands of people with developmental disabilities and workers in many community site-based programs across the State. The directive to regional centers executive directors indicated that regional centers, as a result of the court order, were authorized to provide payment to any impacted providers who provided services to consumers on the most recent holiday since the court order was issued – President’s Day (February 16th). In addition, the letter indicated that regional centers could authorize payments for future holidays that were previously unpaid in the now defunct “Uniform Holiday Schedule”.
Last week the Brown Administration disclosed that it would not appeal a February 13, 2015 ruling by a federal district court judge in Sacramento in the lawsuit “Arc California and UCP of San Diego v. Toby Douglas, et al” that struck down those two cuts, made in 2009 and 2011, that were among a package of major reductions made to health and human services to help close then enormous budget shortfalls. The State had until March 16th, Monday, to file a notice of appeal to the US Court of Appeals for the 9th Circuit, but decided not to, in part because that same court ruled against the State last summer on key elements of this same case. The lawsuit was originally filed in 2011.
The resolution of this federal lawsuit at this point in time means it will not be impacted by whatever ruling comes down from the US Supreme Court in a major case – Armstrong v. Exceptional Child Centers, et al. – that will decide whether Medicaid funded providers or recipients have the right to sue in Medicaid related cases.
WHAT THE LETTER DIRECTS AND AUTHORIZES
1. Informs the regional center directors of the background of the “Uniform Holiday Schedule” and “Half-Day Billing Rule” and of the federal district court order that strikes down both statutes because the State did not get the required approvals from the Centers on Medicare and Medicaid Services (CMS).
2. Authorizes regional centers to pay those providers impacted who provided services to consumers on February 16, 2015 (the most recent of the mandatory holidays in the Uniform Holiday Schedule).
3. Determines that if a regional center decides that any of the previous uniform holidays will not be observed as a holiday for their regional center, then purchase of service authorizations (meaning authorizations to pay a provider for providing services to a consumer on those days) may need to be updated to include those days as “billable days”.
4. Indicated that the “Vendor Electronic Billing (e-Billing)” application will be adjusted to allow for billing on the days previously identified as uniform holidays.
5. Letter to regional center directors will be posted on department’s website.
TEXT OF LETTER SENT TO REGIONAL CENTERS FROM DDS
The following is the complete text of the letter sent from the Department of Developmental Services (DDS) to the 21 regional centers today. A copy of the 2 page letter will be posted on the department’s webpage on uniform holidays at: http://www.dds.ca.gov/
STATE OF CALIFORNIA – HEALTH AND HUMAN SERVICES AGENCY – EDMUND G. BROWN, JR., Governor
DEPARTMENT OF DEVELOPMENTAL SERVICES
1600 9TH Street, Room 320, MS 3-9
Sacramento, CA 95814
TDD 654-2054 (For the Hearing Impaired)
March 17, 2015
TO: REGIONAL CENTER EXECUTIVE DIRECTORS
SUBJECT: PROGRAM DIRECTIVE TO REGIONAL CENTERS REGARDING THE INJUNCTION ISSUED RELATED TO WELFARE AND INSTITUTIONS CODE SECTIONS 4692 (UNIFORM HOLIDAY SCHEDULE) AND 4690.6 (HALF-DAY BILLING FOR DAY SERVICES)
Pursuant to Welfare and Institutions Code (WIC) Section 4692, in 2009 the Department of Developmental Services (Department) implemented a Uniform Holiday Schedule throughout the regional center system, which prohibited regional centers from compensating specified vendors for services provided on any of the holidays identified in the statute. In addition, regional centers were prohibited from compensating for transportation services provided for the purpose of transporting a consumer to receive services from any of the specified vendors on any of the uniform holidays.
In 2011, pursuant to WIC Section 4690.6, activity centers, adult developmental centers, behavior management programs, and other look-alike day programs who charged a daily rate were required to bill regional centers for services provided to consumers in terms of half days of service (i.e., attendance of less than 65% of the program day) and full days of service (i.e., attendance of at least 65% of the program day). This statute directed each vendor to bill at one-half of its existing rate for any consumer who attended the program for less than 65% of the program day.
The purpose of this program directive is to inform regional centers that a federal court has issued an injunction against enforcement of these two statutes. In 2009, a lawsuit was filed in federal court to determine whether the state was required to obtain approval from the Centers for Medicare and Medicaid Services (CMS) prior to implementing the Uniform Holiday Schedule and Half-Day Billing requirements. On February 13, 2015, a federal court issued a ruling that the Uniform Holiday Schedule and Half-Day Billing requirements could not be enforced until such time as the state had obtained CMS approval for the requirements. Therefore, if any of the affected service providers provided services to any consumers on February 16, 2015, one of the previously specified Uniform Holidays, the regional center is authorized to fund for that date. If a regional center determines that any of the previous uniform holidays will not be observed as a holiday for their regional center, then purchase of service authorizations may need to be updated to include those days as billable days. The Vendor Electronic Billing (e-Billing) application will be adjusted to allow for billing on the days previously identified as uniform holidays.
Regional centers should take appropriate action to notify their communities of this program directive. The Department will post this letter on its home page in place of the previous Uniform Holiday Schedule calendar: http://www.dds.ca.
For questions regarding this correspondence, please contact Brian Winfield at (916) 654-1569.
Community Services Division
CC: Regional Center Chief Administrators
Regional Center Chief Counselors
Association of Regional Center Agencies
Bev Humphrey, DDS
Jean Johnson, DDS
Jim Knight, DDS
PROGRAMS IMPACTED ON THE END OF “UNIFORM HOLIDAY SCHEDULE”
The “uniform holiday schedule”, essentially mandatory unpaid furlough days for many site based community programs serving people with developmental disabilities, was part of a larger package of major reductions and cuts imposed on all areas of the State budget in 2009, especially to health and human services. (See below for specific section in State law regarding this reduction). Site based programs covered by that section would normally be closed for many – but not all – of the holidays listed. A literal interpretation of the Judge’s order would mean that site based programs previously covered by Section 4692 could be eligible to provide reimbursable services to people with developmental disabilities on those previously mandatory holidays. [CDCAN Note: See text of the Judge’s order below].
The “uniform holiday schedule” reduction went into effect August 1, 2009 and specifically impacted regional center funded work activity programs, activity centers, adult development centers, behavior management programs, social recreation programs, adaptive skills trainers, infant development programs, program support groups (day service), socialization training programs, client/parent support behavior intervention training programs, community integration training programs, community activities support services, and creative arts programs, as defined in Title 17 of the California Code of Regulations, for providing any service to a consumer on any of the following fourteen (14) holidays: (1) January 1st; (2) The third Monday in January; (3) The third Monday in February; (4) March 31; (5) The last Monday in May; (6) July 4th; (7) The first Monday in September; (8) November 11; (9) Thanksgiving Day; (10) December 25; (11) The four business days between December 25 and January 1.
The “uniform holiday schedule” reduction was authorized in one of the several budget related bills that made up the 2009-2010 State Budget to close an on-going massive deficit in the midst of what was called the “Great Recession”. The budget related bill – known as “budget trailer bills” because those bills follow or trail the main budget bill to make necessary changes in State laws to implement the budget – was ABx4 9 (the “x4” stands for the 4th extraordinary or special session of the Legislature called by the Governor that year) and was passed by the State Senate on July 23, 2009 by a vote of 37 to 1 and by the Assembly by a vote of 62 to 15. Then Governor Arnold Schwarzenegger signed the bill on July 28, 2009, which took effect immediately (Chapter 9, Statutes of 2009).
For HTML Version of ABx4 9 as signed into law July 28, 2009:
pub/09-10/bill/asm/ab_0001- 0050/abx4_9_bill_20090728_ chaptered.html
For PDF Document Version (43 pages) of ABx4 9 as signed in law July 28, 2009:
pub/09-10/bill/asm/ab_0001- 0050/abx4_9_bill_20090728_ chaptered.pdf
CDCAN Note: the specific references to the uniform holiday schedule is on page 41 of the bill.
PROGRAMS IMPACTED BY END OF “HALF-DAY BILLING RULE”
The “half-day billing rule” reduction effective in 2011, impacted activity centers, adult development centers, behavior management programs, and other look-alike day programs with a daily rate and required those providers to bill regional centers for services provided to people with developmental disabilities they served in terms of half days of service and full days of service. (See below for specific section in State law regarding this reduction).
The “half-day billing” reduction was authorized in AB 104, one of the several budget related bills that made up the 2011-2012 State Budget and was one of many other reductions in the budget to help close what was still an on-going deficit. AB 104 was passed by the State Senate on June 10, 2011 by a vote of 23 to 14 and by the Assembly on June 15, 2011 by a vote of 52 to 25. The measure was signed into law by Governor Brown on June 30, 2011 (Chapter 37, Statutes of 2011) and took effect immediately.
For HTML Version of AB 104 as signed into law June 30, 2011:
pub/11-12/bill/asm/ab_0101- 0150/ab_104_bill_20110630_ chaptered.html
For PDF Document Version (33 pages) of AB 104 as signed in law June 30, 2011:
pub/11-12/bill/asm/ab_0101- 0150/ab_104_bill_20110630_ chaptered.pdf
CDCAN Note: references specific to the “half-day billing rule” is on pages 28 and 29 of the bill.
FEDERAL DISTRICT COURT JUDGE ISSUED RULING ON FEBRUARY 13TH
As previously reported by CDCAN, Morrison C. England, Jr., chief judge of the US District Court for Eastern California, in a ruling dated February 11th but issued February 13, 2015, ordered the State to stop further implementation of the mandatory “uniform holiday schedule” and “half-day billing rule” put in place in 2009 and 2011 that were meant to help close enormous State budget shortfalls, along with other major cuts to health and human services.
The “uniform holiday schedule” imposed essentially 14 mandatory annual furlough days where providers of many site based programs were not paid for any services. The “half-day billing rule” limited payment to providers of many site based program for only a half day if a recipient of that program was present for less than 65% of a program day.
The Judge said those two reductions violated federal Medicaid laws by failing to follow a specific process of review and proper prior approvals the from the federal government that those laws require. The judge’s ruling did not say that the State could not impose such reductions or other types of reductions, but that if it did so, needed to follow federal Medicaid laws.
The lawsuit, filed September 28, 2011, originally also called for rescinding of a 4.25% rate reduction impacting at that time many regional center funded providers. That reduction however was previously scheduled to be reduced to 1.25% as of July 1, 2012. The 1.25% was also previously scheduled to expire as of June 30, 2013. The challenge in the lawsuit to those reductions, because they no longer were in existence as the case dragged on for another year and half, were dismissed earlier by the court as “moot” (meaning the challenge in the lawsuit to end the provider rate reductions is now meaningless because those specific reductions no longer exist).
TEXT OF JUDGE’S FEBRUARY 13, 2015 ORDER
The following is the complete text of the conclusion in the 12 page court document issued by the court on February 13th, that contains the judge’s orders.[CDCAN Note: the Judge’s order strikes down the ENTIRE section 4692 in the Welfare and Institutions Code dealing with the uniform holiday schedule – and not just the additional four days added to that schedule]:
“For all the foregoing reasons, Plaintiffs’ Motion for Partial Summary Judgment (ECF No. 172) is GRANTED. The Court finds as a matter of law that the subject provider reductions are invalid. Given that invalidity, the State is permanently enjoined from implementing and/or applying: 1) the so-called “uniform holiday schedule” as currently codified by California Welfare and Institutions Code Section 4692; and 2) the “half-day billing rule” set forth in California Welfare and Institutions Code Section 4690.6. The State is further enjoined from making any future changes to payments perceived by providers without complying with the requirements of 42 U.S.C. Section 1396(a)(30)(A) and demonstrating that approval has been obtained from the Center for Medicaid Services.
Defendants’ Ex Parte Application to Stay Proceedings (ECF No. 169) and Motion to Strike (ECF No. 180) are DENIED.
IT IS SO ORDERED.
Dated: February 11, 2015 [Filed on February 13, 2015]
Morrison C. England, Jr. Chief Judge
United States District Court”
SPECIFIC SECTION IN STATE LAW RELATED TO “UNIFORM HOLIDAY SCHEDULE”
The following is the specific section from California’s Welfare and Institutions Code regarding the “uniform holiday schedule” that was struck down by the federal district court Judge’s ruling issued on February 13, 2015:
“4692. (a) Effective August 1, 2009, subject to subdivisions (c) and (e), regional centers shall not compensate a work activity program, activity center, adult development center, behavior management program, social recreation program, adaptive skills trainer, infant development program, program support group (day service), socialization training program, client/parent support behavior intervention training program, community integration training program, community activities support service, or creative arts program, as defined in Title 17 of the California Code of Regulations, for providing any service to a consumer on any of the
(1) January 1.
(2) The third Monday in January.
(3) The third Monday in February.
(4) March 31.
(5) The last Monday in May.
(6) July 4.
(7) The first Monday in September.
(8) November 11.
(9) Thanksgiving Day.
(10) December 25.
(11) The four business days between December 25 and January 1.
(b) Effective August 1, 2009, subject to subdivisions (c) and (e), regional centers shall not compensate a transportation vendor/family member, transportation company, transportation/additional component vendor, transportation broker, transportation assistant/vendor, transportation vendor/auto driver, or transportation vendor/public or rental car agency or taxi, in accordance with Title 17 of the California Code of Regulations, for transporting any consumer to receive services from any of the vendors specified in subdivision (a) for any of the holidays set forth in paragraphs (1) to (11), inclusive, of subdivision (a).
(c) If a holiday listed in this section falls on a Saturday or a Sunday, the following Monday shall be deemed to be the holiday in lieu of the day observed.
(d) Contracts between the vendors described in this section and regional centers shall reflect the holiday closures set forth in this section and shall be renegotiated accordingly, as necessary.
(e) The department may adjust the holidays set forth in subdivision (a) through a program directive. This directive shall be
provided to the regional centers and posted on the department’s Internet Web site at least 60 days prior to the effective date of the change in holiday.”
SPECIFIC SECTION IN STATE LAW RELATED TO “HALF-DAY BILLING” REDUCTION
The following is the specific section from California’s Welfare and Institutions Code regarding the “half-day billing” reduction struck down by the federal district court Judge’s ruling issued on February 13, 2015:
“4690.6. (a) Activity centers, adult development centers, behavior management programs, and other look-alike day programs with a daily rate shall bill regional centers for services provided to consumers in terms of half days of service and full days of service.
(b) For purposes of this section, the following definitions apply:
(1) “Full day of service” means a day in which the consumer’s attendance is at least 65 percent of the declared and approved
(2) “Half day of service” means any day in which the consumer’s attendance does not meet the criteria for billing for a full day of service.
(c) A regional center may change the length of the declared and approved program day for a specific consumer in order to meet the needs of that consumer, upon the recommendation of the individual program planning team. The regional center shall set forth in the individual program plan the length of the consumer’s program day and the reasons for the change in the length of the declared and approved program day.
(d) The definitions set forth in this section shall not apply to vendors of tailored day program service.
CDCAN – MARTY OMOTO YOUTUBE CHANNEL
A CDCAN (Marty Omoto) youtube channel was set up and has several videos dealing with current – and previous state budget issues, disability and senior rights, and advocacy.
To see the current videos, including March 2014 San Andreas Regional Center Aptos Legislative Breakfast, January 2014 panel discussion on services for adults with autism spectrum and related disorders in Palo Alto, and older videos including video of April 2003 march of over 3,000 people with developmental disabilities, families, providers, regional centers and others from the Sacramento Convention Center to the State Capitol (to attend and testify at budget hearing on proposed massive permanent cuts to regional center funded services, go to the CDCAN (Marty Omoto) Channel at:https://www.youtube.com/
More videos – including new current videos (an interview with longtime advocate Maggie Dee Dowling is planned, among others) – plus archive videos of past events – will be posted soon.
MARCH 17, 2015 – TUESDAY
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